Today’s blog is written by William Lim, a law student at Western University and research assistant to Professor Adam Parachin, associate professor of law at Western University.

As discussed in a recent blog by Professor Adam Parachin, the Court in McCorkill v. Streed 2014 NBQB 148 took the unusual step of striking an unconditional bequest to the National Alliance, a white supremacist organization, on the basis of public policy. The issue in question was whether the court should have declared the bequest invalid given that the activities of the National Alliance were contrary to public policy but not made for any specific purposes.

Justice Grant emphasized that the legatee in McCorkill engaged in illegal hate speech prohibited by s 319(2) of the Criminal Code. Though the National Alliance operated in the U.S., where its activities are lawful, Justice Grant reasoned that “in this age of the Internet, national boundaries are meaningless for the purposes of spreading hate propaganda such as that disseminated by the National Alliance”.

The decision raises the various concerns identified in Adam Parachin’s blog. Was there an alternative way the Court could have reasoned to the same conclusion?

Perhaps Justice Grant could have, as others have, framed testamentary freedom as a form of expression.

This might have been a helpful way to explain why the hate speech provisions of the Criminal Code were relevant to the validity of the bequest. If testamentary freedom is a form of expression, then it is subject to the limits on free expression, including the limits established by the hate speech provisions of the Criminal Code.

The question, then, is whether testamentary freedom can be viewed in this light, i.e., as expressive conduct. In defining the scope of freedom of expression under s 2(b) of the Canadian Charter of Rights and Freedoms, the Supreme Court in the landmark decision of Irwin Toy Ltd. v Quebec (Attorney General)held that if an activity conveys or attempts to convey a meaning, it has expressive content and prima facie falls within the scope of the guarantee. A bequest to the National Alliance could therefore qualify as expressive conduct if we interpret the bequest as trying to “send a message”.

There are certain dangers with treating a bequest as a form of expression. Doing so would, for example, subject testamentary freedom to all limitations on lawful expression. Further, it implies that Charter values somehow inform traditional property rights. Nevertheless, framing testamentary bequests as a form of expression might have supplied the court in McCorkill with a more disciplined and focused basis for striking the bequest to the National Alliance.